Court Quashes Approval of Trans Mountain Pipeline

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jerrym
Court Quashes Approval of Trans Mountain Pipeline

Indigenous and environmental groups have won a major legal victory with the Federal Court of Appeal's quashing of the federal government's approvals for the construction of the Trans Mountain Pipeline expansion, thereby halting the project indefinitely. This leaves the Liberal government's purchase of the pipeline hanging like an albatross aroound its neck for its wasting of money and for the Liberal and Conservative government's failure to adequately take into account the environmental and indigenous impacts of expanding the pipeline during the approval process.

In the decision released Thursday, and written by Justice Eleanor Dawson, the court found the National Energy Board's assessment of the project was so flawed that it should not have been relied on by the federal cabinet when it gave final approval to proceed in November 2016. The certificate approving construction and operation of the project has been nullified, leaving the project in legal limbo until the energy regulator and the government reassess their approvals to satisfy the court's demands. ...

Amid uncertainty, Kinder Morgan agreed to sell the project to the federal government this spring. Now, the Liberal government is the owner of a proposed pipeline project that could be subject to years of further review.

In its initial study of the project, the NEB found that the pipeline would not cause significant adverse environmental impacts. But the court has determined that conclusion is bogus because it did not assess the impacts of marine shipping — increased tanker traffic that would result from the expanded pipeline — on the environment and southern resident killer whales in the waters around the line's shipping terminal. The appellate court also found that the federal government did not adequately, or meaningfully, consult with Indigenous people and hear out there concerns after the NEB issued its report recommending that cabinet approve the project.
The court has ordered the federal government redo its Phase 3 consultation.

"Only after that consultation is completed and any accommodation made can the project be put before the Governor in Council (cabinet) for approval," the decision reads. "The duty to consult was not adequately discharged in this case."

https://www.cbc.ca/news/politics/tasker-trans-mountain-federal-court-app...

 

Michael Moriarity Michael Moriarity's picture

It will be interesting to see whether the Trudeau government appeals this ruling to the SCC, or just starts on a new environmental assessment, or both. I sure don't expect them to give up on the project, after spending billions of dollars buying the damn white elephant.

NDPP

Delightful news. It's a costly fiasco which must end permanently now. 'Handsome Harper' has done quite enough damage with this already. We're all on the hook for a ridiculous multi-billion dollar pipe dream that can't possibly be built. 

epaulo13 epaulo13's picture

Court quashes Trudeau’s approval of Trans Mountain pipeline

quote:

'Canada displayed a closed-mindedness'

The unanimous ruling criticized the Trudeau government for making a decision based on inadequate evidence from the report prepared by the National Energy Board after it held hearings to review the project.

It also said the government’s consultation process with First Nations wasn’t meaningful or adequate.

“Indeed, a review of the record of the consultation process discloses that Canada displayed a closed-mindedness when concerns were expressed about the Board’s report and was reluctant to depart from the findings and recommendations of the Board,” said the ruling, drafted by Justice Eleanor Dawson.

“With rare exceptions, Canada did not dialogue meaningfully with the Indigenous applicants about their concerns about the Board’s review. Instead, Canada’s representatives were focused on transmitting concerns of the Indigenous applicants to the decision-makers and nothing more. Canada was obliged to do more than passively hear and receive the real concerns of the Indigenous applicants.”

If built, the Trans Mountain expansion would triple the capacity of an existing pipeline system, allowing it to ship up to 890,000 barrels of bitumen and other petroleum products from Alberta’s oilpatch, to a Burnaby terminal in metro Vancouver.

The federal and Alberta governments, along with oil companies, say it would generate growth by giving oilsands producers access to new markets on the Pacific Ocean. Dozens of affected Indigenous communities, environmentalists and some municipalities along the route have argued that the project is too risky and would push Canada’s climate change goals out of reach.

The ruling acknowledged that the government had attempted to address concerns about oil tanker shipping with its Oceans Protection Plan, but that this failed to address their legal requirement to ensure that the NEB had considered this during its review.

“The unjustified failure to assess the effects of marine shipping under the Canadian Environmental Assessment Act, 2012, and the resulting flawed conclusion about the effects of the Project was so critical that the Governor in Council could not functionally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.”

The ruling also noted that the Trudeau government gave First Nations only a few weeks to review a voluminous report that summarized all of the efforts it was supposedly taking to accommodate them.

“The inadequacies of the consultation process also flowed from Canada’s unwillingness to meaningfully discuss and consider possible flaws in the Board’s findings and recommendations and its erroneous view that it could not supplement or impose additional conditions on Trans Mountain,” said Dawson's ruling.

“Canada is not to be held to a standard of perfection in fulfilling its duty to consult. However, the flaws discussed above thwarted meaningful, two-way dialogue. The result was an unreasonable consultation process that fell well short of the required mark.”

epaulo13 epaulo13's picture

..the pipeline can not go forward. it will now take months if not years to restart if it ever does. and millions of more $. this was always the probability when the gov bought the pipeline. this is trouble for trudeau.

eta:

..it will also be interesting to see if the liberal gov will be able to proceed with their plan for extinguishment after this ruling.

NDPP

Tsleil-Waututh Nation v Canada (Attorney-General)

https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/343511/index.do

Federal Court of Appeal Decisions  -  2018-08-30   2018FCA153

jerrym

The court decision occurred just two days after the 2017 record for the size of the area burned by wildfires was broken. Tuesday's new record of 12,988 square km is 2.3 times the size of Prince Edward Island and 41.5% of the area of Vancouver Island and there is still over a month to go in the wildfire season. Last year $564 million was spent fighting the wildfires. As of Saturday $310 million has been spent this year fighting these fires and the bill is going to climb substantially higher. Last year 65,000 were forced to evacuate their homes, often for extended periods. Substantial amounts of commercial forest have been destroyed.

This is of course in addition to the increased risk to the ocean, killer whales, rivers, and salmon spawning beds that the expansion of the pipeline represents. 

It's not just the Indigenous people, environmentalists and courts that are telling us we cannot continue to ignore the consequences of the fossil fuel agenda of the Federal Liberal government that further enables global warming. The evidence is in the flames right in front of the eyes, in the smoke in the eyes, and in the nostrils and scratchy throats of BCers.

According to the latest statistics provided by the B.C. Wildfire Service, a record 12,998 square kilometres of the province have been scorched by wildfires this season, eclipsing last year’s mark of 12,164 square kilometres, which was the worst level of destruction since 1958 when 8,560 square kilometres burned. ...

There have been 2,011 fires so far this summer, more than last year’s total of 1,353.

The B.C. government, which originally declared a state of emergency on Aug. 15, has extended the declaration for 14 more days, until the end of the day on Sept. 12. ...

As of Wednesday morning, 534 wildfires were burning in B.C., with 34 evacuation orders affecting approximately 3,200 people. Another 53 evacuation alerts are currently impacting approximately 21,800 people. (more than 6,000 had faced earlier evacuations).

https://theprovince.com/news/local-news/wildfire-ravaged-b-c-extends-pro...

epaulo13 epaulo13's picture

Trans Mountain decision won't affect NAFTA negotiations: Freeland

The Trans Mountain pipeline's uncertain future in Canada will not impact intensified North American Free Trade Agreement negotiations Foreign Affairs Minister Chrystia Freeland said as her team continues to hammer out a revised deal in Washington.

"Absolutely not," said Freeland when asked if a Federal Court of Appeal decision adds pressure to her work at the U.S. Trade Representative's office.

In a decision released Thursday, the Federal Court of Appeal found the National Energy Board's assessment of the Trans Mountain project was flawed and the federal cabinet should not have relied on it when it gave final approval to proceed in November 2016.

The court's decision nullifies the government's approvals to build the project, leaving it on shaky ground until the energy regulator and the government can reassess its approvals to satisfy the court's demands.

"The NAFTA negotiation is, as I think you all know,  an extremely important negotiation for Canada," ​Freeland told reporters during a pause between meetings Thursday.

"We have our eyes resolutely on that prize and we are not focusing on or responding to any other factors."

Freeland said those talks have entered a "very intense rhythm."

"We continue to be encouraged by the constructive atmosphere," Freeland said. "There's a lot we're trying to do in a short period of time."

epaulo13 epaulo13's picture

..so tomorrow the km buy-out gets finalized. i wonder...

Liberals 'absolutely committed' to Trans Mountain after Federal Court of Appeal quashes construction approvals

quote:

Finance Minister Bill Morneau said the federal government is carefully reviewing the decision but is determined to proceed with the project, that he said, is in the best national interest and "critically important" for the economy.

"We are absolutely committed to moving ahead with this project," he said at a news conference in Toronto. "What the decision today asked us to do is to respond promptly; gave us some direction on how we can do that in a way that is going to be efficient from a time standpoint. So we will be considering our next steps in light of that." 

Morneau said the Liberal government inherited a "flawed process" for reviewing the project.

He described the pipeline purchase as a good investment that will yield strong returns in years ahead, and that the deal to buy it will be finalized as early as Friday.

quote:

Squamish Nation celebrates ruling

Thus, the court is ordering cabinet to direct the NEB to reconsider its approval of the project and remedy some of the concerns raised by the court before cabinet can give the final go-ahead for construction.

Khelsilem, councillor and spokesperson for Squamish Nation in B.C., said many are feeling "elation and happiness and joy" with today's ruling.

"This government played politics with our livelihood," he said. "They did not behave honourably and the courts agreed every step of the way."

Khelsilem said the consultation with First Nations was more like note-taking than meaningful consideration.

Other First Nations, however, expressed hope that the project would proceed, including the Whispering Pines First Nation near Kamloops, B.C., part of a contingent that supports the pipeline going ahead under Indigenous control and is trying to buy it.

Conservative Leader Andrew Scheer called today's ruling "devastating" news for Canadian workers and taxpayers and a "complete indictment"  of the Trudeau government's efforts to get the project off the ground.

"Today's development is further eroding the confidence in this Liberal government's ability to get big projects built," he said. "They either kill or cancel the projects based on ideology, or they mismanage and bungle them to the point where they're in a very precarious position."

NDP Leader Jagmeet Singh said the ruling shows the Liberals have failed to live up to their obligation to respectfully consult with Indigenous people. He said the government should stop construction and explore legal options to stop the sale of the project.

Just three days ago, the Trans Mountain Twitter account posted pictures of workers beginning construction of the pipeline expansion.

"Pipeline construction for the #TransMountain Expansion Project has officially begun! We celebrated the big milestone over the weekend, as crews kicked off construction in Central #Alberta," the tweet read.

In a statement, Kinder Morgan confirmed construction will now stop.

"Trans Mountain is currently taking measures to suspend construction related activities on the Project in a safe and orderly manner," the statement reads.

 

Mr. Magoo Mr. Magoo's picture

Is the main issue the form of the consultations?  e.g. that they didn't consult enough people, didn't consult the right people, the consultations didn't last long enough, etc.?

Or is the main issue the outcome?  e.g. that despite some people opposing the pipeline, it went ahead anyway?

jerrym

The judgement said that the consultation did not meaningfully consult with Indigenous people.

Furthermore, Vassy Kapelos on Power and Politics noted that the Liberal government's own ministerial panel on the pipeline flagged the government's lack of engagement with Indigenous people. The ministerial panel report stated that "There were common threads from presenters in every jurisdiction,  even among those people who negotiated benefit agreements and signed letters of support with Trans Mountain. Most said their rights were not respected and their concerns about impacts were ignored or at best minimized".

In other words, even those Indigenous people who signed agreements with Trans Mountain, often because they were mired in deep poverty, objected that their rights and concerns about environmental impacts were not being addressed.  

epaulo13 epaulo13's picture

..the issue is sovereignty..imho. and the courts are just one sphere where this plays out.

Pogo Pogo's picture

Magoo,

There were two main issues.  1) That the environmental impact of increased ocean traffic was improperly considered outside the mandate.  2) That the indigenous consultation was insufficient.  At 7:30 am people were pulling paragraphs out of a 200+ page decision.  There seems to be  plenty of debate on whether meaningful input was effectively a veto.  I think however you will need to wait for someone to actually read and digest the judgement to get a substantial answer to your question.

The fact that there was two items each judged as worthy of overturning the approval was seen as making any appeal problematic.  Particularly because they were very different in kind to me makes it even harder.

 

Mr. Magoo Mr. Magoo's picture

Quote:
The judgement said that the consultation did not meaningfully consult with Indigenous people.

I suppose my question really boils down to that:  what does "meaningful" consultation mean?

And again, is consultation "meaningful" if certain process is followed?

Or is consultation "meaningful" if certain outcomes are arrived at?

The previous Ontario government consulted with parents before implementing a new sex-ed curriculum in the province, but even though many parents were vehemently against it, they went ahead anyway.  Was it "meaningful" consultation?

epaulo13 epaulo13's picture

eta: better link

..here is the indigenous press conference held earlier today. you can watch and listen to their perspective. as was said i paraphrase "we could have made millions of dollars for ourselves. but that's not what we want.". eta: they were not just celebrating their personal victory but one of collaboration with others from funders to fundraisers to bby mt resisters, to cities opposed. to all opposed to km.

Press conference on today’s court decision on Kinder Morgan. Beautiful words from courageous leaders whose work will be felt by our common descendants.

Mr. Magoo Mr. Magoo's picture

Quote:
you can watch and listen to their perspective.

I don't think their perspective is what's going to answer my question about what constitutes meaningful consultation though.

And to be clear, I'm not arguing against those Indigenous who oppose the pipeline (and I'm not arguing against those who support it, either).  I'm just still curious whether meaningful consultation implies a process or an outcome.  Presumably, the consultation didn't provide the outcome that this group wanted, but the court's judgement did.  I wouldn't be terribly suprised to hear that, but it still doesn't answer the question.

epaulo13 epaulo13's picture

..if magoo, you continue to see this as a narrow consultation issue you will not arrive at a satisfactory answer. this needs to be seen, imo, as one part of a broader struggle. this government wants extinquishment for indigenous nations. it wants to turn them into municipalities under their jurisdiction. maybe i'm wrong in interpreting your question. sorry if i am.

Mr. Magoo Mr. Magoo's picture

Quote:
..if magoo, you continue to see this as a narrow consultation issue you will not arrive at a satisfactory answer.

I'm not seeing it in terms of consultation because I'm obsessed with consultation.  But that's the reason the court gave.

If the court had said, for example, that the pipeline could not go through because the government/KM lacked necessary permission from some (Indigenous) legal owners of that land, I wouldn't be asking any of this because that would be self-explanatory.

And if the court had said the pipeline cannot proceed because the consultations weren't "heroic" enough, I hope we would ALL be asking for clarification about what constitutes a "heroic" consultation, even if we also applaud the moratorium.  I'm just asking about "meaningful", because that doesn't just apply in this case.

quizzical

i read a breakdown of the synopsis of the ruling and it said the courts said phase 3 had to be done all over again before it could be put up for consideration of approval again.

so now we have a government seeking approval from itself and having to redo a whole phase.

epaulo13 epaulo13's picture

magoo

..in post #10 you asked what the main issue is. you can talk about the ruling but that is not the main issue. the main issue is sovereignty.

Mr. Magoo Mr. Magoo's picture

The main issue in the court's judgement.

epaulo13 epaulo13's picture

Mr. Magoo wrote:

Is the main issue the form of the consultations?  e.g. that they didn't consult enough people, didn't consult the right people, the consultations didn't last long enough, etc.?

Or is the main issue the outcome?  e.g. that despite some people opposing the pipeline, it went ahead anyway?

..here it is and it goes beyond the court case. look at your last sentence.

NorthReport

As Pogo stated (thanks Pogo), there were 2 reasons the Federal Court of Appeal overturned the Kinder Morgan (read Trudeau pipeline) project's approval by the federal government.

Court Overturns Kinder Morgan Pipeline Approval; Project Future Questioned

Inadequate consultation with First Nations cited; risk to whales not considered.

The court cited two main failures.

The NEB didn’t consult with First Nations affected by the pipeline in a meaningful way, the court found, failing to engage in real discussion of concerns.

“The flaws discussed above thwarted meaningful, two-way dialogue,” the judgment said. “The result was an unreasonable consultation process that fell well short of the required mark.”

--------------------

And the energy board wrongly excluded the effects of increased shipping as a result of the pipeline project from its review, the court found.

That allowed it to claim there were no “significant adverse environmental effects,” a conclusion that was central to its report.

In fact, increased tanker traffic poses a threat to endangered Southern resident killer whales, the court found.

http://rabble.ca/babble/canadian-politics/court-quashes-approval-trans-m...

NorthReport

Today's winners and losers:

Winners:

First Nations Peoples

Orca Whales

Environmentalists

Salish Sea (Coast of BC)

BC NDP Premier John Horgan

BC NDP Minister of the Environment George Heyman

BC Green Leader Andrew Weaver

NDP leader Jagmeet Singh

Kinder Morgan Corporation

Vancouver Mayoralty Candidate Kennedy Stewart 

epaulo13

Losers

Prime Minister Justin Trudeau

Premier Rachel Notley

Canadian Taxpayers who now own the Trudeau pipeline

 

NorthReport
kropotkin1951 kropotkin1951's picture

Magoo read the decision. It explains the process and problems very clearly in language even a contrarian can understand. In the meantime stop derailing a conversation because you would rather waste our time instead of using your time to read.

This great song says it all from a BC perspective.

https://www.youtube.com/watch?v=2bKxATTtVaM

JeffWells

Notley is pulling Alberta out of the federal climate plan over this.

https://www.cbc.ca/amp/1.4805224?__twitter_impression=true

Words fail, but my disgust will go on.

NDPP

'This is a Country at War With Itself on Access to Resources': Who are the Players Behind Pivotal Win for Pipeline Opponents?

https://www.thestar.com/vancouver/2018/08/30/this-is-a-country-at-war-wi...

"Thursday's much-anticipated ruling will almost certainly not be the final word on the project, since whoever loses is likely to try to appeal the ruling to the Supreme Court of Canada..."

NDPP

"Tweet Trudeau and Morneau: 'Stop the KM Buyout!'"

https://twitter.com/CouncilofCDNs/status/1035276327689940992

Pay the $10m penalty and walk away from a $10b mess...

epaulo13 epaulo13's picture

The death of Trans Mountain pipeline signals future of Indigenous rights: Chiefs

quote:

Bigger leap on Indigenous rights needed

The verdict is one in a long line of recent court decisions that carve out new legal space around Indigenous title and rights, including the quashing of Enbridge’s Northern Gateway pipeline proposal and, although not precedent-setting, reinforces a trend in the case law.

Governments and industry should now change their ways of doing business instead of coming up with another bogus consultation process and, despite the federal government’s insistence that the Trans Mountain project will go forward, it is time to bury it, Phillip said.

“Smothered by choking wildfire smoke this summer, we’ve experienced a taste of what climate change is bringing. This environmentally destructive project should never have been approved and the Trudeau government must stop construction immediately,” he said.

Union of B.C. Indian Chiefs vice-president Chief Bob Chamberlin is encouraged that the court has recognized the need for Canada to uphold Indigenous title and rights on projects on their territories, but says a bigger leap is now needed.

“First Nations face consultation processes endlessly and I have yet to see one where meaningful accommodation of Aboriginal rights occurs. It’s quite the opposite,” he said.

The way forward is for governments to fulfil promises for full implementation of the UN Declaration on the Rights of Indigenous Peoples and recommendations from the Truth and Reconciliation Commission, Chamberlin said.

“If you want to make things better you can’t do what has always been done, you have to come up with something different,” he said.

“Consultation and accommodation is yesterday’s law and so today and tomorrow it’s about implementing UNDRIP, which means consent,” he said.

That means coming up with a new process that sets out shared decision-making instead of relying on a process that allows government to run roughshod over Aboriginal rights, he said.

Ruling could affect Site C dam case

In the meantime, the decision is likely to affect other projects before the courts, including the Site C dam which is being challenged by West Moberly First Nations in B.C. Supreme Court, Chamberlin said.

Indigenous law expert Jack Woodward agrees the decision, which he described as “courageous,” will enhance other cases as it emphasizes that the existing law on Aboriginal rights must be applied.

“Absolutely it could have a bearing on the Site C case. Although that hearing is going to a different court, they will respect each others’ decisions and apply those precedents appropriately. It strengthens the hand of the Aboriginal parties,” Woodward, author of Section 35 which enshrined Aboriginal rights in the Canadian constitution, said.

epaulo13 epaulo13's picture

..more from the above piece

quote:

Federal Finance Minister Bill Morneau has not yet said whether the case will be appealed to the Supreme Court of Canada, but is emphasizing the pipeline will be built with appropriate environmental standards and engagement with Indigenous people.

However, Woodward is unsure how that is possible.

First the government will have to work out how to get around the Species At Risk Act and accommodate the increase in tankers, from five to 34 a month, without killing off the Southern Resident Killer Whale population, he said.

Then there is the thorny question of how to properly conduct consultations when Canada has purchased the pipeline with the assumption it will go ahead.

“How can Canada go back to the First Nations and listen and accommodate properly? The government has made its case so much more difficult now because the question of good faith consultation is now front and centre because the government has said we don’t care what this decision says, it is going ahead,” Woodward said.

Any future consultations will be under a microscope and it will be difficult to claim good faith or a neutral stance when the government has prejudged the issue, he said.

“I wouldn’t bet money on this project ever going ahead,” Woodward said.

“They have tied one hand behind their back and I don’t know how they can get round this.”

Chris Tollefson, University of Victoria law professor and executive director of the Pacific Centre for Environmental Law and Litigation, said the decision changes the landscape and underlined profound deficiencies in the process that will take a long time to address if the project is to go ahead.

“The government has been put on notice that shortcuts and artificial deadlines in the consultation process will not be tolerated by the courts,” he said.

Government ownership of the pipeline is a wild card and, if the case if appealed, government has some difficult decisions as it would be spending taxpayers’ money in a way that could impair Aboriginal rights and title, Tollefson said.

Government will also have to get its head around the fact that consultation requires meaningful dialogue around key points of concern, with government representatives looking for solutions rather than acting as note-takers, Tollefson said.

“The government got elected on a platform where they admitted the process was flawed and they wanted to fix it and yet when First Nations raised those concerns in the consultation process there was never any attempt to address them. It was simply noted and then referred to cabinet,” he said.

WWWTT

kropotkin1951 wrote:

Magoo read the decision. It explains the process and problems very clearly in language even a contrarian can understand. In the meantime stop derailing a conversation because you would rather waste our time instead of using your time to read.

This great song says it all from a BC perspective.

https://www.youtube.com/watch?v=2bKxATTtVaM

Sorry brother but I'm going to defend Mr Magoo here!

I read some of the ruling, some of the reaction as well. I'm not convinced the pipeline expansion is burried forever. From how I understand it, only the process used by the government to justify the pipeline is dead and buried forever, and not the pipeline expansion itself. Actually, from how I understand it, the courts left the door wide open for the government to modify adjust the process in getting an pipeline expansion approved.

I seriously doubt that the oil companies are going to roll over this easily! 

Martin N.

Just another speed bump on the road to completion of TM. The Village Idiot and his merry band of incompetents brought this on themselves by failing to adequately "consult and, if required, accommodate ". 

This judgement isn't a death knell, rather it is a road map to future success not only for TM but projects that follow.

NorthReport

It appears that the NEB has lost serious credibility with this judgment thanks to both the Harper and the Trudeau governments which is indicative of the very poor representation we have in Ottawa It does seem like we need something brand new in Ottawa so that Canadian citizens rather than multinational corporations be taken into consideration by our Canadian governments

https://thetyee.ca/News/2018/08/30/Why-Court-Appeal-Overturned-Pipeline/

kropotkin1951 kropotkin1951's picture

WWWTT wrote:

I read some of the ruling, some of the reaction as well. I'm not convinced the pipeline expansion is burried forever. From how I understand it, only the process used by the government to justify the pipeline is dead and buried forever, and not the pipeline expansion itself. Actually, from how I understand it, the courts left the door wide open for the government to modify adjust the process in getting an pipeline expansion approved.

I seriously doubt that the oil companies are going to roll over this easily! 

I never said it was buried. I was reacting to Magoo's requests for people to explain things to him when he is obviously intelligent enough to read it himself.

There are two parts to the decision; one saying that the sham environmental process was flawed because you can't on the one hand say that the increased marine traffic will significantly increase risks and then say that the pipeline can be okayed without looking at that aspect of the environment. My take after reading the decision was that the Judge rightly called that a pile of bullshit and said that the NEB submission to the government was void for being illogical.

As well the government after it heard from the NEB had an obligation to consult with the affected First Nations regarding the NEB request for the specific project. The Judge was scathing in her observation of the non-speak that they recieved instead of consultation. She did not say where exactly the line is for adequate consultation because she didn't have to. She basically said this was so far below any standard of reasonableness that it was pathetic. This summary of the consultation process highlights the lack of sincerity that the Crown brought to the consultation including on the critical lack of marine environmental assessment. You have to rrealize that Tsleil-Waututh means People of the Inlet.

<>[ However, when the discussion turned to how to address Tsleil-Waututh’s concerns, federal representatives noted that “proposals to strengthen marine shipping management, including nation to nation relationships, would take time to develop and strengthen.” They went on to express optimism:

… that progress toward a higher standard of care could occur over the next few years with First Nations, at a nation to nation level, particularly on spill response and emergency preparedness capacities. As baseline capacities increased, risks would be reduced.

  • This generic and vague response that concerns could be addressed in the future, outside the scope of the Project and its approval, was Canada’s only response. Canada did not suggest any concrete measures, such as additional conditions, to accommodate Tsleil-Waututh’s concerns about marine shipping.

<>[ Nor did Canada propose any accommodation measures at the meeting of October 28, 2016. At this meeting, Tsleil-Waututh sought further discussion about the Project’s definition because, in its view, this issue had to be resolved if the Project was to be sent back to the Board for reconsideration. Canada’s representatives responded that this was a matter for consideration by the Governor in Council and “it was understood that the scope of the [Board’s] review would be litigated.”

https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/343511/index.d...

 

kropotkin1951 kropotkin1951's picture

Martin N. wrote:

Just another speed bump on the road to completion of TM. The Village Idiot and his merry band of incompetents brought this on themselves by failing to adequately "consult and, if required, accommodate ". 

This judgement isn't a death knell, rather it is a road map to future success not only for TM but projects that follow.

LMAOROF

I love it when syncophants claim they are winning when they are losing.

NDPP

Liberals Could Get Out Of Leaky Kinder Morgan Deal For $10 m - But they Won't

https://t.co/dgCOkHywod

"It would be a small price to pay to get out from under this toxic asset."

kropotkin1951 kropotkin1951's picture

NDPP wrote:

Liberals Could Get Out Of Leaky Kinder Morgan Deal For $10 m - But they Won't

https://t.co/dgCOkHywod

"It would be a small price to pay to get out from under this toxic asset."

That would be a small price to pay!! Especially when one compares it too the inevitable NAFTA suit that would follow.

WWWTT

@ Kropotkin

Ok thanks for clarifying where you felt Mr Magoo was coming from. But really brother, this ruling is just  saying the liberals f'd up in thinking that they could build a potentially hazardous pipeline. And that's code from the courts that if the government can show that they spent reasonable time consulting any potential hazards and put in safegaurds that sound very convincing to the courts, then the courts will wash their hands of this since because no one in the future would ever be able to win a lawsuit against the government or the courts.

Courts in Canada only care about protecting their own asses. The courts are also expensive for 1 good solid reason. Those with the most money have 10X better chances at winning rulings.

epaulo13 epaulo13's picture

..business as usual is over. and it's been over as usual since at least idle no more. this ruling is not the politics but it does represents a shift in power. the politics behind this government, in fact all canadian governments, is the politics of colonization. the courts didn't speak this language but they understand it and know full well what balance they shifted. 

..the liberals aren't stupid. the writing was on the wall when northern gateway was shut down. i don't understand why they bought the pipeline. maybe to please trump?

..anyway do you see that pipeline coming back to life? why not when that was just a matter of consultation? as was said up thread undrip is the way forward. which is a shift from consult to consent.

..well done indigenous folk. well done bc. well done to all those everywhere who supported the struggle. people take a lesson here on how to make change..via broad collaboration. not parliaments.  

Mr. Magoo Mr. Magoo's picture

Quote:
I never said it was buried. I was reacting to Magoo's requests for people to explain things to him when he is obviously intelligent enough to read it himself.

To be fair, I read legal about as well as I read French.  I generally get the gist.  Anyhoo, sorry to be a bother.

Seems the answer to my question was "process".  Fair enough.

kropotkin1951 kropotkin1951's picture

The main issue for all of these disputes over land use that become legal questions is, "who gets to decide what risks are acceptable." How local is that decision and how much voice and imput do affected people have in saying what gets built in their community.

This Judge has not made any ground breaking ruling she has merely looked at the NEB and its process of determining what risks are acceptable and who needs to be consulted and found that it was all a sham. Clearly she said that this project can go ahead if it passes a proper process that includes the risks of tankers to the orca population and the risk of spills in Burrard Inlet and properly dealing with First Nations objections. In a sane world the Burrard Inlet tanker expansion cannot go ahead because the risk to the marine environment is too high. So any fair and scientific assessment says that doesn't happen.

This moves the fight to the Interior of BC, Deltaport and Puget Sound. Its my bet that the Liberal's are going to announce that they intend to build the pipeline but that they will not proceed with a terminal based in Burnaby but instead will be looking to ship from the Deltaport. There is no ready market in Asia to pay a premium for our toxic gunk, if there was KM would regularily be shipping it out of its existing facility but they aren't.

epaulo13 epaulo13's picture

..i can't remember exactly how many but i understand the ruling encompassed around 13 or 14 applications. some of which are in the interior. the work which just started in alta a couple days ago on the pipeline is stopping according to kinder morgan. in accordance with the ruling they said. i think the km twining is finished.

WWWTT

@Kropotkin Epaulo

I think we can now all agree that this ruling does mean that the cost of a pipeline west will cost more money. Bad news for capatilists! Good news for environmentalists!

And in that, I will concede that this ruling may very well kill this expansion project. But something always tells me that maybe this is just too good to be true. 

kropotkin1951 kropotkin1951's picture

The project includes everything from Alberta to Burnaby. This ruling ended the construction, for now. The next move is up to TransMountains new owners. They need to reapply to the NEB to get a new project approved. The government has to ensure that the review process meets the smell test and that First Nations groups have been properly consulted on the specifics of the proposal prior to the NEB deciding whether or not the new owners can proceed. Then if the process is not seen as fair by the groups that litigated this round then they will be back in court again. Many lawyers and consultants will make a good living all the while it is going on so I guess you can say the pipeline is a job creator.

Martin N.

kropotkin1951 wrote:

Martin N. wrote:

Just another speed bump on the road to completion of TM. The Village Idiot and his merry band of incompetents brought this on themselves by failing to adequately "consult and, if required, accommodate ". 

This judgement isn't a death knell, rather it is a road map to future success not only for TM but projects that follow.

LMAOROF

I love it when syncophants claim they are winning when they are losing.

Its not just us syncophants, the court itself sees this judgement merely as a delay while the Feds get "consult" right.  

Enjoy your momentary elation because the forces gathered behind this pipeline will not be stopped. As we can all see, depending on trade with the US will drive our country to the brink even without Mr Dressup and his clown car of incompetents.

NDPP

An industry view...

The Oil Giant That Outsmarted Trudeau

https://oilprice.com/Energy/Crude-Oil/The-Oil-Giant-That-Outsmarted-Trud...

"...As Reuters discovered, it appears that Canada has been taken for a ride by Kinder Morgan. The Texas-based pipeline structured deals in such a way that it couldn't lose, even if the project stalled.

In a scathing article in The Guardian, environmentalist Bill McKibben called Justin Trudeau 'The world's newest oil executive,' and said that 'the cutest, progressivest, boybandiest leader in the world,' is going 'fully in the tank for the oil industry."

Martin N.

From the Judgement:

“The concerns of the Indigenous applicants, communicated to Canada, are specific and focused,” the judge wrote. “This means that the dialogue Canada must engage in can also be specific and focused. This may serve to make the corrected consultation process brief and efficient while ensuring that it is meaningful.

“The end result may be a short delay, but, through possible accommodation, the corrected consultation may further the objective of reconciliation with Indigenous peoples.”

On the inadequate consideration of increased oil-tanker traffic on killer whales, the judge suggested a relatively quick fix for that, too.

The Trudeau cabinet (“Governor in Council”) may now direct the National Energy Board to reconsider the tanker-traffic impacts “taking into account any factor specified by the Governor in Council,” the judge wrote. “As well, the Governor in Council may specify a time limit within which the board shall complete its reconsideration.”

quizzical

Mr Dressup and his clown car of incompetents.

i do agree with your descriptive term and find funny but this is Harpers and the CPCs incompetency not the Liberals. their mistake was trusting Harpers competency.

Martin N.

quizzical wrote:

Mr Dressup and his clown car of incompetents.

i do agree with your descriptive term and find funny but this is Harpers and the CPCs incompetency not the Liberals. their mistake was trusting Harpers competency.

Godwin cries! 

HDS also dictates that Harper is responsible for holes in the ozone layer, earthquakes and Maria Tremonti's irritable bowel syndrome.